140 Iowa 332 | Iowa | 1908
— The plaintiff was injured while engaged in switching in the defendant’s yard at Dubuque. He had been in' the employ of the defendant as a brakeman for some little time prior to the accident, but had never theretofore engaged in the work of switching in yards. On the night in question he was called from his bed by the yard foreman, and directed to go into the yard and assist in switching in place of some of the regular switching crew. When he reached the yard, he was provided with a lantern by the yard foreman, and directed to
The defendant complains of the instruction just referred to, and says that it erroneously assumed that, if the engineer failed to heed the plaintiff’s signal to stop and. moved the engine. against the car át an unusual and dangerous rate of speed, the plaintiff would be justified in believing and acting upon the belief that the drawbar was so defective and out of alignment that he would be crushed between the engine and the ear, but this is manifestly a very strained construction of the language used;.in fact,
Before -a recovery could be had, it was, of course, necessary for the plaintiff to prove that the emergency under which he acted was produced by the negligence of the defendant; in other words, the ground of apprehension must be occasioned by the negligence of the defendant. It can hardly be questioned, we think, that this negligence on the part of the appellant was fully shown. The engine was running at an excessive rate of speed. Signals to slow up and to stop, and finally, an emergency signal, were given and unheeded. The plaintiff believed that he was in danger of being crushed by reason of the nonalignment of the drawbars, and by the excessive speed of -the engine and the failure of the engineer to answer his signal to stop. An injury was inflicted upon him caused by the excessive impact, and, if the impact had not been so excessive, there would have been no injury, or, if the engineer had obeyed the signal to stop, there would have been no danger nor appearance of danger. The engineer was therefore guilty of negligence which caused the plaintiff to act as he did.
The ninth instruction, or a part thereof, is also criticised, but what we have said regarding the instructions already discussed disposes of the appellant’s contention as to the ninth.
specifically advise the jury as to the perjury of the plaintiff. No just complaint can be ma(je 0f the instruction. It carefully called the attention of the jury to the various elements which might properly be considered in weighing the testimony, and as affecting the credibility of the several witnesses, and this was sufficient.
A good many instructions were requested by the defendant, but, so far as they embodied the law applicable to this ease, they were covered by the instructions given by the court.
We find no error in tbe proceedings of the trial court, and, believing that the verdict and judgment are sufficiently supported by the evidence, the case must be, and it is, affirmed.